Raum: Bush detainee program under assault

Thursday

WASHINGTON -- President Bush's global war on terror is drawing heavy fire on the home front, both from Congress and the courts.

The president's assertion of extraordinary powers -- from the limitless holding of "enemy combatants" to the warrantless surveillance of Americans -- is under challenge from all directions.

A pair of recent rulings, one from a military court and the other from a federal appeals panel, delivered fresh legal broadsides against Bush's tactics for dealing with terrorism suspects.

The days for such anti-terrorism strategies may be numbered.

"I think that the next president, whether Democratic or Republican, is going to have to reverse course on some of these decisions," said Paul C. Light, professor of public policy at New York University. "You cannot assert yourself into a stronger presidency. That requires legislation, and then judicial review."

Democratic presidential contenders uniformly have been critical of the detainee policies championed by the president and Vice President Dick Cheney. Republicans have been generally more supportive, with the exception of Sen. John McCain, a former Vietnam prisoner of war.

Multiple efforts are under way in the Democratic-run Congress to put restrictions on Bush policies on detainees and terror suspects and to gain access to Justice Department documents related to domestic wiretapping. A bill that would allow Guantanamo detainees access to federal courts to challenge their imprisonment was approved last week is headed toward a Senate vote.

Bush's pattern has been to push right up to the edge, and then back down if necessary -- as when he agreed last January to modify the National Security Agency's no-warrant wiretapping program to put it under the supervision of a special court. That followed outcries from Democrats, civil-liberties groups and conservatives.

A recent challenge came last week from a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va. In a 2-1 decision, it said Bush may not declare civilians in this country to be "enemy combatants" and have the military lock them up indefinitely.

The court found Bush overstepped his authority when he declared that Ali al-Marri, a Qatar native living in Peoria, Ill., on a student visa, was an "enemy combatant" and placed him in military custody. Al-Marri has been detained since his December 2001 arrest, the past four years in solitary confinement in the Navy brig in Charleston, S.C.

The administration is appealing the ruling to the full 4th Circuit court, long considered one of the most conservative in the country.

Earlier, military judges ruled that the Pentagon could not prosecute two Guantanamo detainees because the government had failed to identify them as "unlawful" enemy combatants, as required by Congress, dealing a blow to efforts to begin prosecuting dozens of detainees. The distinction between classifications of enemy combatants is important because if they were "lawful," they would be entitled to prisoner-of-war status under the Geneva Conventions.s.

With even conservatives in Congress and within the judiciary expressing unease about some Bush-Cheney interpretations of presidential power, support for current anti-terrorism detention policies seems to be ebbing.

n Tom Raum has covered national and international affairs for The Associated Press since 1973.

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